Pets and Pre Nups: How are they dealt with?

Maybe it’s due to the pandemic and working from home which has meant more people have bought a puppy for the first time, but I have seen  a noticeable increase in the number of people who are getting married and who want to include provision for what happens to their dog if the marriage doesn’t work out.

As a dog owner myself I readily admit that my dog is my “fur baby”. I have had her since she was 8 weeks old. My husband accepts that she is “my dog” and that if we were to separate, she would come with me.

Sometimes though it isn’t that easy. What if a couple have gone together to choose the dog? What if they paid for the dog out of joint funds? What if they each love the dog equally? What then happens if they separate, and they each want to have the dog living with them?

How does the court deal with a dog on a divorce? A dog is a chattel in the same way as a work of art or a watch is a chattel. This means that the court has the power to decide what happens to it on a divorce. In practice the parties usually reach agreement on what happens to the dog but it can sometimes be very acrimonious.  I remember a very complex multi-million pound case some years ago where we were eventually making headway in negotiating a financial settlement after nearly 18 months of court proceedings. During one of the meetings, the lawyer acting for the husband asked about the dog. When I reported this to my client, her response was that if he wanted the dog, she was going to end the negotiations and walk out.  I explained this to my opponent but his instructions from his client were that he wanted to push for the dog being with him and he insisted I raised this with her. When I told my client, she packed up her bag and walked out of the meeting and out of the offices. After a long while (and many conversations with her husband’s lawyer about the dog) she returned to the meeting, and we concluded the settlement and the dog was never mentioned again!

The court can therefore decide who has the dog on a divorce. In deciding this, the court would look at who paid for the dog initially, who paid for the cost of the dog during the marriage, who looked after the dog, took it for walks, fed it etc.  In theory the court can order for a dog to be sold and the proceeds of sale divided equally between the parties or in a different proportion depending on who paid for the dog initially and who has paid for the vet fees, food and general upkeep during the marriage. Fortunately, I have never known this happen.

Some years ago I acted for a lady in a divorce where we spent quite some time in agreeing a schedule for how the two dogs of the couple would divide their time between London and the country estate. We negotiated how this would work in practice, who would accompany the dogs from London to the country, who would pay the cost of this, who would pay for any vet treatment in both locations etc.

In a pre-nuptial agreement, it is possible to set out with whom the dog will live in the event of a divorce so that it is clear at the outset what the parties intend to happen. I have also drafted provision for the dog spending time with each of the parties and also who pays the vet fees, dog food, kennels, travel costs and such like and if these are divided equally or proportionate to the time the dog spends with each party.

A recent collaborative case involved a couple getting married where one of the parties was American and we spent some time in discussing whether he would be able to take the dog abroad, for how long, the impact of this on the other party and how this would work in practice for each of them in the event of a divorce. I have also acted in cases where the couple don’t even own a dog at the time of the pre-nuptial agreement but they plan on getting a dog or dogs after the wedding and want to consider what would happen if they then divorced.

Preparing a pre-nuptial agreement through the collaborative process allows a couple to discuss and consider every aspect of their daily life, including what happens to the family pet or pets.

Elizabeth Hicks is a director at Family Law in Partnership. She specialises in all areas of family law with a particular focus in advising HNW and UHNW clients on complex cross jurisdictional issues of family, matrimonial and trusts law. Her work includes divorce, contested financial remedy cases, children cases and preparing Pre and Post Marital Agreements.